This week it will be one year since President Barack Obama signed the Affordable Care Act (ACA) into law. Despite all the controversy that preceded the bill’s passage, most health policy experts confidently predicted that the public would soon embrace the legislation.

To back up these predictions, they pointed out that Medicare was quite controversial when it was established in the 1960s, but rapidly grew in popularity. Much the same happened more recently with Medicare Part D, the law championed by President George W. Bush to extend Medicare coverage to medications.

Recent polls belie these predictions, however, as support for health care reform has hit an all-time low. Why has the ACA failed to capture public support? Our research provides a novel explanation, one that pundits have failed to recognize to date.

Obama’s health reform bill is unpopular not simply because it is complicated, nor simply because it costs government money at a time when people are in a mood to balance the budget. Instead, it is unpopular in large part because it no longer feels inevitable.

And the key to gaining widespread support for Obama’s signature piece of domestic legislation is not to help the public better understand the intricacies of the bill, but instead to convince the public that the bill is here to stay.

Uncertainty can play a large role in reducing support for legislative actions. Consider a study we conducted, in which we asked people to imagine their local government had recently passed a bill to lower the speed limit, legislation spurred on by new evidence that such a law would save lives. The people we surveyed embraced the new rule, feeling thankful that legislators were paying attention to public safety.

However, in assessing public attitudes toward this bill, we conducted an experiment in which we told some of the people we surveyed that the legislature was about to pass the law but hadn’t yet voted on it – that is, it wasn’t officially a law yet. These people, in contrast to the first group, felt strongly that such legislation would be heavy-handed and paternalistic.

The same bill, when passed into law, was viewed more favorably than when it was merely pending legislation.

What about health care reform then? It has passed into law. Shouldn’t it be gaining in popularity?

Not if people don’t believe the bill is the law of the land. When the Republican-led House voted to repeal the bill, Washington insiders recognized the action as a symbolic gesture with no legislative consequence.

But many Americans thought this vote had actual legal implications. In fact, recent polls show that a fifth of the American public currently believe the ACA has been repealed, and another fifth is unsure if the bill still stands as law. This misperceived state of affairs provides no reason for these Americans to embrace a law they believe no longer stands.

Recent court rulings have created even greater uncertainty about the legal standing of the ACA. While most rulings have focused solely on the constitutionality of the health insurance mandate, one judge went as far as to opine that the entire law should be voided. This has left even more people wondering where the bill stands: as current law, pending law or past law?

Behavioral science has shown us that most people find uncertainty to be a very difficult pill to swallow, especially when it surrounds a proposed change to their lives. Half-hearted attempts at change often produce knee-jerk, negative reactions; people are not inclined to adapt to a change that may never occur or seems unlikely to stick. These are the types of situations most likely to breed backlash.

But when the uncertainty is removed, backlash reactions tend to dissipate and sometimes even reverse. When people know what cards they have been dealt – when they feel confident about what to expect in the future – people tend to begin the process of rationalizing the change and adapting to it.

The real battle over health care reform in the next few months will extend beyond the specifics of budget debates and regulatory wranglings. Instead the fate of health care reforms stands mainly on how soon, if ever, the public comes to feel that the legislation is enduring. If the permanence of the Affordable Care Act continues to feel unsettled, that will become a self-fulfilling prophecy.

A Harvard Law student wrote a worthwhile post on Law & Mind a few weeks ago about some of the dynamics behind the health care debate. Here is an excerpt.

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How should an institution inspire collective action? What’s the best strategy? The conventional wisdom is that to solve a collective problem, the institution should reward contributors and punish free-riders. To prevent people from littering, fine them; to induce people to donate to charity, reward them; to move people to invent, lure them with intellectual property . . . . The implicit reasoning is that the typical human agent is a rational wealth-optimizer who won’t contribute to a public good unless he or she is incentivized to do. Yet, . . . the rational actor model isn’t an accurate depiction of human nature. Just as the average person doesn’t make the “rational choice” in an ultimatum bargain, the average person doesn’t jump to contribute to a public good on account of a mere carrot or stick. The conventional wisdom—that the optimal solution for the collective action dilemma is incentive-based—is a gross oversimplification; the almighty incentive is only one aspect of a rich, complex puzzle. Nonetheless, the conventional solution is unquestioned in our popular discourse regarding collective action.

Before exploring Professor Kahan’s theory, though, consider a recent example of the conventional wisdom’s influence on public discourse from an article in Slate entitled, “The Senator’s Dilemma,” published last week. There, Christopher Beam argues that the Democratic Party’s strategic stance with respect to health care reform can be viewed as a classic collective action problem. Although Beam’s characterization of the problem is surely correct, his policy prescription is conventional.

Can Ted Kennedy’s death help shape future health care negotiations and pass a compromise bill? Yes – but not for the reasons you think.

On August 24, 2009, President Barack Obama’s ambitious health care agenda looked to be at serious risk. Numerous sources such as MSNBC, CBS News, and even the blogosphere were noting that Obama’s key initiative was losing traction among an American electorate that was alternately confused on the details of an amorphous plan, concerned about taking on additional costs during a nearly unprecedented recession, or ideologically opposed to a supposedly ‘inferior’ “Canadian-style health care” A Republican Party which had appeared confused and unfocused in response to Obama’s popularity suddenly had an issue around which could re-energize their base.

But on August 25, something seemingly important happened –Ted Kennedy passed away. Instantly, a Democratic Party which had been previously charitably described as ‘torn’ on the issue of a national health care plan sprung into action. Hours after Kennedy’s passing, Nancy Pelosi attempted to rally her party around an issue which Kennedy had described as his life’s unfinished work. ‘Win one for Teddy’ was the message and the rally around the flag effect came into play to varying degrees of receptivity. Kennedy supporters, such as his former press secretary Bob Shrum, were hopeful that his “long shadow” could spur renewed commitment for a deal. Those sceptical of the need to reform health care in the United States, such as John McCain, were quick to dispute the notion that Kennedy’s passing would help the pro-reform crowd due to the loss of the senior senator from Massachusetts’ strong bipartisan deal-making ability and passionate advocacy for his ‘pet project’.

Ultimately only time will tell what, if any, long-term effect Kennedy’s death will have among centrist Democrats and moderate Republicans (the key demographics necessary to pass health care reform). However, a week following the events of Kennedy’s death the centrist reconciliatory approach hoped for by Shrum already appears to have been a pipe dream as Kennedy’s passing seems to have a had a marginal impact on the terms of debate. On a recent head-to-head debate spot on CNN on September 7, 2009, Senators Orrin Hatch (R-Utah) and Bernie Sanders (I-Vermont) repeated almost verbatim the general entrenched arguments of both sides. Hatch argued that adding a layer of complexity to the current U.S. health care system by putting it in the hands of the ‘bureaucrats’ (a favourite target of the Republicans since the Reagan days) while Sanders questioned how adding a public option and introducing competition to the private sector would negatively impact the business models of HMOs (overlooking the fact that a public option would have access to vast amounts of capital and visibility that some HMOs would be unable to compete with).

President Obama’s major address to Congress on health care on September 9th did little to heal these ingrained divisions. While the speech was well received by many centrist critics, the reaction among both the left and the right was largely humdrum. As noted by many observers from a wide spectrum of sources, Obama’s rhetoric and appeals to bipartisanship may have appealed to moderate Americans but did little to move legislators and, most likely, their core constituents.

The seeming inablity of both sides to parrot anything other than their entrenched arguments got me thinking about modern conceptions of the ‘art’ of negotiation and how it pertains to hot-button national political issues. Specifically, current political debates serve to underscore how undervalued situation has been as a consideration by scholars when studying political negotiations.

A favourite case study used by negotiation theorists to illustrate the power of political negotiators in bargaining situations is the Malta-U.K. negotiation for British leasing rights of a Maltese naval base in 1971. William Howard Wriggins advances the notion in his case study that Malta managed to maximize the value of their lease agreement with the U.K. by shopping their outdated and relatively unimportant military outpost to NATO enemies such as the Soviet Union, Libya and other Arab states. Malta’s leader leveraged the situation at the height of the Cold War to their advantage by making the alternatives to the U.K. and its NATO allies (that of having a rival’s outpost right in the middle of the Mediterranean) exceedingly unattractive. The contention of negotiation scholars is that Malta’s leadership managed to reframe the terms of the negotiation from a straight-up lease renewal of an unimportant outpost into a broader issue regarding NATO defence strategies.

While Wriggins’ example is an entertaining example of how political negotiators can use situation in order to reframe the terms of debate, state-to-state negotiations rarely share characteristics with intra-state political negotiations. To exemplify this point, take the Malta-U.K. example. What must be kept in mind in that case is the fact that the Maltese prime minister was wildly popular for taking on ‘outsiders’ (the U.K.). His aggressive and sometimes belligerent negotiation tactics helped foster an ‘us-against-them’ mentality among his constituents and consequently helped unite them in a (mostly) singular cause – making the British pay. Even though the costs to the Maltese would be great in financial terms were negotiations unsuccessful, their shared goal made the issue a collective struggle. However, in cases of internal political divisions such as the debate over health care, this ‘us-against-them’ phenomenon is more destructive. Because the foe in this case is not an ‘outsider’ and the issue an ideologically salient one regarding the future direction of the country, any attempts to incite such bravado inflame existing tensions making a peaceable resolution less likely. Unfortunately (or fortunately, depending on your political viewpoint), the debate surrounding health care has already reached ‘us-against-them’ proportions as the debate between Senators Sanders and Hatch would attest.

The differences between the forums in which these negotiations take place are also exceedingly important. State-to-state negotiations usually take place at a high-level and behind closed doors where the public only knows the final outcome. Because the number of participants in these negotiations is so limited, it makes the tactics used by skilled negotiators more valuable. This is because the participants and negotiators in these sessions are freer to discuss options (framing various options in their favour being what skilled negotiators do best) without public scrutiny and gives ‘low-skill agents’ less opportunity to distort situations. Internal political negotiations, on the other hand, necessarily take place in the public sphere. Due to the fact that issues such as health care affect all Americans, possibly for generations, there is little tolerance for elite-driven closed-door bargaining – the public wishes to be engaged. Hence, even if closed-door negotiations did put an end to the health-care debate among legislators (which is unlikely), there would be little public acceptance of such a deal due to the fact that it would fail ‘second-table’ negotiation – that is negotiation with constituents.

But what about if you abandon strategic bargaining and try ‘principled negotiation in order to ‘expand the pie’? This ‘principled’ conception of negotiation was introduced by Roger Fisher and William Ury at the Harvard Project on Negotiation. Fisher and Ury’s assumption was that negotiators and stakeholders have the power and ability to reframe the terms of the negotiation and introduce new `win-win’ scenarios as possible outcomes. In essence, the theory posited by Fisher and Ury advances the notion how you negotiate (Fisher and Ury, Getting to Yes Second Edition, p. 177) makes an enormous difference because skilled negotiators can come up with creative options by which to ‘expand the pie’ and can overcome vast differences in power between the negotiation parties. While Fisher and Ury’s points are well made and are essential practical skills for negotiators, their points are less adept at explaining the dynamics driving intra-state political negotiations, such as that over health care.

As we have seen above, the ‘us-against-them’ mentality has already taken root which makes principled negotiation difficult. As I noted in a previous piece, UVA Social Psychology Professor Jonathan Haidt argues that when the public is faced with a difficult political question (of which health care would certainly qualify), most people “generally lean one way or the other right away, and then put a call in to reasoning to see whether support for that position is forthcoming.” Most tellingly, Haidt notes that “Most people gave no real evidence for their positions, and most made no effort to look for evidence opposing their initial positions.” Hence, while the negotiators behind the health care debate (in this case, legislators) may know the intricacies underpinning their respective arguments, convincing their constituents at second-table negotiations will be difficult. Indeed, even Senators with impeccable conservative credentials such as Chuck Grassley (R-Iowa) are getting hammered by his core constituents who are concerned he may “bend too much on the way to compromise”.

In addition, while some legislators such as Max Baucus’ bipartisan “Gang of Six” have been working toward a health care compromise bill for months, most of the debate has been waged in full view of the American public. While this makes sense given the nature of the issue and the unlikelihood of success of second-table negotiations if negotiations were held behind closed doors (as noted above), this has also served to make fringe media characters on both sides more powerful. While these fringe agents aren’t ‘low-skill agents’ per say given that they aren’t actual negotiators or ‘agents’ they can be described as tools used by low-skill agents in gaining traction or core support for their more aggressive demands. Therefore, such talking heads as Keith Olbermann and Ann Coulter add a degree of obfuscation and surreality to the health care debate. Fringe media used by low-skills agents often impede the process of negotiations due to the fact that they are more interested in increasing their profile rather than wishing for any reasoned compromise. As noted by Michael Caine (Alfred) in the Dark Knight “Some men can’t be … reasoned with. Some men want to watch the world burn”.

Knowing all this, then, the question remains –Will Ted Kennedy’s passing influence the passage of ‘Obamacare’ and is there any hope for a compromise? The answer to both is yes though for reasons some may find counterintuitive.

Kennedy’s passing surely has an impact on the health care debate in America. While the central disagreements may have stayed the same, the loss of Kennedy is surely a blow to civilized discourse regarding health care reform. As noted by both Republicans and Democrats in the wake of Kennedy’s death, he was a respected legislator who was “willing to work with others to get things done, for the greater good.” His passing, then, means that there is one less communicator to sell health care and one less contemporary off of which Republicans can bounce their objections and ideas. Sadly, Shrum’s vision of a bipartisan Congress working toward a peaceable compromise on health care is growing more unlikely. As noted by Senator Arlen Specter (D-Pennsylvania), “We shall pause for our fallen comrade, but nothing seems to have any effect on the partisanship.” Instead, Kennedy’s legacy is more likely to be used to Democrats to rally their troops as Obama did September 9th. Kennedy’s legacy regarding the passage of reformed health care, then, may not be as a segueway to grand compromise but as a tool for greater Democratic engagement.

But is there still any hope for compromise bill? And can political negotiations regarding sensitive national issues still attain success? There is, and it can. However, building in order to reach this compromise we must build upon the lessons of Fisher and Ury. In negotiations such as this how you negotiate strikes me as less important than with whom you negotiate. In order to reach a negotiated settlement to the health care debate, politicians must turn the page and realize that their audience for negotiations rests ultimately not with their political peers but with their constituents. The negotiation is therefore not with each other but with voters.

With mid-term elections coming up, political leadership on both sides must realize that the fringes of their support have little place to go – those Republicans opposing all forms of government intervention aren’t going to vote Democrat or vice versa. Even those disaffected by any compromise aren’t likely to stay home given the pervasiveness of the issue and its potential effects. Therefore, the leaders on both sides must moderate their tone and aim for the squarely for the soft centre, where there is more leeway and additional votes to be had for or against health care reform. Only in this way will either side get (or, in the case of the Democrats, hang on to) the seats necessary to control the framework of negotiations for health care reform. President Obama has seemingly realized this appetite for compromise among the centre given his speech on health care. The question is, are legislators listening?

From Bill Moyers’ Journal: “Former Labor Secretary Robert Reich sits down with Bill Moyers to talk about the influence of lobbyists on policy, the economy, and the ongoing debate over health care.” See the interview on the video below. From the interview, here is a bit of what Reich had to say about trends in wealth distribution.

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“The fact of the matter is that, as late as 1980, the top 1 percent by income in the United States had about nine percent of total national income. But since then, you’ve had increasing concentration of income and wealth to the point that by 2007 the top 1 percent was taking home 21 percent of total national income. Now, when they’re taking home that much, the middle class doesn’t have enough purchasing power to keep the economy growing. That was hidden by the fact that they were borrowing so much on their homes, they kept on consuming because of their borrowing. But once that housing bubble exploded, it exposed the fact that the middle class in this country has really not participated in the growth of the economy, and over the long term we’re not gonna have a recovery until the middle class has the purchasing power it needs to buy again.”